Article 31. Disclosure · Last amended 2014 · Last verified July 21, 2026
(a) Persons before whom depositions may be taken. Depositions may be taken before any of the following persons except an attorney, or employee of an attorney, for a party or prospective party and except a person who would be disqualified to act as a juror because of interest in the event or consanguinity or affinity to a party:
1. within the state, a person authorized by the laws of the state to administer oaths;
2. without the state but within the United States or within a territory or possession subject to the jurisdiction of the United States, a person authorized to take acknowledgments of deeds outside of the state by the real property law of the state or to administer oaths by the laws of the United States or of the place where the deposition is taken; and 3. in a foreign country, any diplomatic or consular agent or representative of the United States, appointed or accredited to, and residing within, the country, or a person appointed by commission or under letters rogatory, or an officer of the armed forces authorized to take the acknowledgment of deeds.
Officers may be designated in notices or commissions either by name or descriptive title and letters rogatory may be addressed “To the Appropriate Authority in (here name the state or country).”
(b) Oath of witness; recording of testimony; objections; continuous examination; written questions read by examining officer. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under his direction, record the testimony. The testimony shall be recorded by stenographic or other means, subject to such rules as may be adopted by the appellate division in the department where the action is pending. All objections made at the time of the examination to the qualifications of the officer taking the deposition or the person recording it, or to the manner of taking it, or to the testimony presented, or to the conduct of any person, and any other objection to the proceedings, shall be noted by the officer upon the deposition and the deposition shall proceed subject to the right of a person to apply for a protective order. The deposition shall be taken continuously and without unreasonable adjournment, unless the court otherwise orders or the witness and parties present otherwise agree. In lieu of participating in an oral examination, any party served with notice of taking a deposition may transmit written questions to the officer, who shall propound them to the witness and record the answers.
(c) Examination and cross-examination. Examination and cross-examination. Examination and cross-examination of deponents shall proceed as permitted in the trial of actions in open court, except that a non-party deponent’s counsel may participate in the deposition and make objections on behalf of his or her client in the same manner as counsel for a party. When the deposition of a party is taken at the instance of an adverse party, the deponent may be cross-examined by his or her own attorney. Cross-examination need not be limited to the subject matter of the examination in chief.
(d) The parties may stipulate that a deposition be taken by telephone or other remote electronic means and that a party may participate electronically. The stipulation shall designate reasonable provisions to ensure that an accurate record of the deposition is generated, shall specify, if appropriate, reasonable provisions for the use of exhibits at the deposition; shall specify who must and who may physically be present at the deposition; and shall provide for any other provisions appropriate under the circumstances. Unless otherwise stipulated to by the parties, the officer administering the oath shall be physically present at the place of the deposition and the additional costs of conducting the deposition by telephonic or other remote electronic means, such as telephone charges, shall be borne by the party requesting that the deposition be conducted by such means.
Subdivision (a) says who may preside over a deposition: within New York, anyone authorized to administer oaths; outside New York but within the United States, someone authorized to take deed acknowledgments or administer oaths where the deposition happens; and abroad, a U.S. diplomatic or consular officer, someone appointed under a commission or letters rogatory, or certain military officers. The rule disqualifies an attorney or employee of an attorney representing a party, and anyone who would be disqualified from jury service due to an interest in the case or a family relationship to a party — the officer running the deposition has to be neutral.
Subdivision (b) covers the mechanics once the deposition is underway: the officer swears in the witness, records the testimony stenographically or by another approved method, and notes any objections on the record — to the officer's qualifications, to how the deposition is being conducted, to the testimony itself, or to anyone's conduct — without stopping the deposition, since the remedy for a serious problem is a motion for a protective order rather than a walkout. Examination has to proceed continuously, without unreasonable breaks, unless the court orders otherwise or everyone present agrees to a different schedule. Subdivision (c) makes the examination and cross-examination track ordinary trial practice, and importantly gives a non-party witness's own attorney the right to object on the witness's behalf, just like counsel for a party. Subdivision (d) authorizes remote depositions by telephone or other electronic means when the parties stipulate to it, and requires that stipulation to nail down how the record will be kept accurate, how exhibits will be handled, and who has to be physically present — with the swearing-in officer physically present at the deposition location unless the parties agree otherwise, and the party who asked for the remote format bearing the extra cost of doing it that way.
Subd (a) of this rule generally follows CPA §§ 357 to 359. The disqualification clause is based upon CPA § 301. See also Iowa Code Ann, R Civ P 153(a) (1951). Subparagraphs 1 and 2 are based upon New Jersey rules 4:18-1 and 4:18-2, respectively. The phrase in the New Jersey provision “authorized to administer oaths by the laws of this state” has been modified to reflect New York’s distinction between notaries who have no power outside the state and those persons authorized by Real Property Law §§ 299, 300 and 301 to take acknowledgments of deeds outside the state. Thus, a New York notary would not be authorized to take a deposition outside the state. Authorized would be a commissioner of deeds appointed pursuant to the law of the state to take acknowledgments or proofs without the state ( Real Prop Law § 299(4)) and certain officers of the armed forces, with respect to military personnel and certain others. Real Prop Law § 300. Subparagraph 3 and the last sentence of the subdivision are based upon Federal rule 28(b). The reference to officers of the armed forces has been added to conform to § 300 of the Real Property Law, permitting them to take acknowledgments both within and without the United States. The reference to commissioners of deeds in § 299 of the Real Property Law does not include the power to act in foreign countries. Where a member of our diplomatic staff is not to be utilized, letters rogatory would seem appropriate; accordingly, there appears to be no need to import into the rule of the foreign officials described in § 301 of the Real Property Law. CPA § 309 made explicit the power to use letters rogatory or commissions which is implicit in the last sentence of the subdivision. The advisory committee decided not to adopt Colorado rule 28(d), which warns practitioners that commissions and letters rogatory must be in the form prescribed in the state or country in which the deposition is taken if they are to be recognized in those places. See, generally, Jones, International Judicial Assistance: Procedural Chaos and a Program for Reform, 62 Yale LJ 515, 519–520 (1953).
Subd (b) of this rule is almost the same as New Jersey rule 4:20-3. The practice under it is similar to the former practice under CPA § 302 and RCP 127. RCP 128 has been omitted as providing unnecessary paperwork. Explicit permission to take the testimony by mechanical means was not considered necessary (cf. 30 Fla Stat Ann, R Civ P 1.24(c) (1956); Ill Ann Stat c. 110, § 101.19-6(2) (Smith-Hurd Supp 1956)) because it is difficult to see how a party would be prejudiced by the use of such recording devices. The protective order referred to is one possible under CPLR § 3103. Provision for stipulation by parties and deponent to allow interruption in or adjournment of examination provides that any adjournment needs the consent of any parties present as well as of the witness.
Subd (c) of this section represents former New York practice. The first and last sentences are based on New Jersey rule 4:16-3. The second sentence embodies RCP 129-a.
This measure would expressly permit testimony to be perpetuated on videotape.
To achieve this end CPLR 3113(b) would be amended to clarify that the testimony of any witness may be recorded “by stenographic or other means.” “Other means” include videotaping.
At present there is no statutory or decisional barrier against using videotape to perpetuate testimony. The courts have allowed it in some cases (see Bichler v. Eli Lilly and Co. 50 A.D. 2d 90 (First Dept. 1976); Rubino V. G. P. Searle and Co., 75 Misc. 2d 447 (Supreme, Nassau Co. 1973).
The videotape recording of testimony has the great advantage of offering the opportunity for the jury to see the witness, observe his demeanor, and hear his testimony, which is much more effective than the tedious procedure of reading the stenographic testimony of a witness the jury has never seen.
In the area of perpetuation and use of testimony, a special problem exists in the case of a party’s medical witness. Physicians are often unavailable to appear in court on the trial of personal injury cases. When they do appear the expense of their appearance, especially of expert witnesses, is often substantial. At present, litigants as well as judicial administration bear the burden of this problem, because frequent adjournments caused by the unavailability of medical witnesses impede the processing of cases. For this reason, it is particularly important for the testimony of a party’s medical witness to be perpetuated, not only without the restrictive techniques of laying a foundation, but also by whatever means are most appropriate. The advantages of videotape testimony are clear.
The proposal permits the recording of depositions by stenographic or other means, subject to such rules as may be adopted by the appellate division in the department where the action is pending. The Study conducted by Judge McCooe refers to voluminous materials compiled on the use of videotape in court, especially by the National Center for State Courts. The Advisory Committee is in accord with Judge McCooe’s recommendation that special rules be promulgated after the proposed Rule is adopted. Model rules for implementing the use of videotaping, in courts have been developed in various places, as indicated in Judge McCooe’s Study. The Advisory Committee believes such rules should be adopted by the appellate divisions and should be as uniform as practicable. Such rules, for example, might include provision for the simultaneous videotaping and stenographic transcription of the testimony of a witness when appropriate or necessary. See People v. Aponte, 20 Cr L. 2014 (Supreme Court, Bronx County, September 2, 1976), where the court ordered videotaping and stenographic transcription pursuant to the mandate of section 660 CPL.
1993 Recommendations of Advisory Committee on Civil Practice:
Rule 3113(a)(2).
The amendment would eliminate a formal discrepancy between federal and state practice created by the 1980 amendment to Fed. R. Civ. P. 28(a).
The purpose of this measure is to legislatively overrule the decision of the Appellate Division, Fourth Department, in Thompson v. Mather, 70 AD3d 1436 (4th Dept 2010). The measure has been amended in 2013 to provide an appropriate limit on the participation of the non-party’s counsel.
In Thompson, a medical malpractice action, arrangements were made for the videotaped depositions — for use at trial ( 22 NYCRR 202.15) — of plaintiff’s treating physicians. During the course of those depositions, the attorney for a witness objected to the form and relevance of certain questions. The Appellate Division ultimately ruled that “counsel for a nonparty witness does not have a right to object during or otherwise to participate in a pretrial deposition.” The Court principally relied upon the language of CPLR 3113(c), which provides that the examination of witnesses at a deposition “shall proceed as permitted in the trial of actions in open court.” And, reasoned the Court, since a non-party’s attorney has no right to interpose objections to questions asked of the witness at trial, no such right exists at deposition.
While the Thompson Court may have correctly interpreted the literal language of the statute, it has, in the Committee’s view, reached the wrong result. In reducing counsel for a deposition witness to a “potted plant” [ Sciara v. Surgical Associates of Western New York, P.C., 32 Misc.3d 904, 927 N Y S 2d 770 (Sup. Ct. Erie Co.2011)], the Thompson decision leaves a non-party witness essentially unprotected during a deposition. A lay witness may not, for example, know when to decline to answer a question because it invades a privilege, or is plainly improper and would, if answered, cause significant prejudice to any person. Moreover, a likely result of application of the Thompson ruling is that a party will be encouraged to depose a potential adverse party before joining that person as a party to the action, in order to be able to avoid the objections that a party’s lawyer would be able to make at a post-joinder deposition. The Committee believes that this strategy ought not be promoted.
In the Sciara decision cited above, Supreme Court interpreted Thompson’s restrictions as being limited to objections to form or relevance. That interpretation, if upheld, would ameliorate the deleterious effects of Thompson. But this Committee believes that a witness’s attorney should be able to protect all of the witness’s interests, and have the same right to object at a deposition as does an attorney for a party.
Accordingly, we have recommended an amendment to CPLR 3113(c) to specifically provide that a non-party’s counsel “may participate in the deposition and make objections on behalf of his or her client in the same manner as counsel for a party.”
Add, L 1962, ch 308, eff Sept 1, 1963; amd, L 1993, ch 98, § 6, eff Jan 1, 1994; L 2004, ch 66, § 1, eff Jan 1, 2005; L 2014, ch 379, § 1, effective September 23, 2014.